Defense counsel facing potential multimillion-dollar judgments
from the threat of class action proceedings—particularly
class actions brought under statutes providing for treble damages
and attorney's fees, such as the Racketeer Influenced Corrupt
Organizations (RICO) Act, the Real Estate Settlement Procedures Act
(RESPA), and the Telephone Consumer Protection Act (TCPA)
—have gotten creative in their attempts to end class
litigation before certification. For example, in Campbell-Ewald
Company v. Gomez, 136 S. Ct. 663 (2016), the Supreme Court
considered whether an unaccepted offer to satisfy the named
plaintiff's individual TCPA claim, made pursuant to Federal
Rule of Civil Procedure 68, renders the plaintiff's (and the
purported class') case moot. The Court held that it did not,
reasoning that under basic principles of contract law, an
unaccepted offer is a legal nullity, did not bind either party, and
therefore did not moot the parties' dispute. Id. at
670. The
